We are frequently asked by our clients if they are able to record their ex-partner in a conversation with them.
This may arise during argument after separation, during changeovers with the children or at any other time. It is becoming increasingly prevalent that this sort of evidence is floating around due to the advances in technology and the applications on everybody’s mobile telephones that they have with them.
It is usually the case that there is another parent recording their conversations without their permission or consent and in particular after separation and notably if there are Family Court Proceedings on foot.
The recordings without their consent is usually always perceived as threatening in some way, and intimidating and it may be reported to the police. In New South Wales, there is legislation namely the Surveillance Devices Act of 2007 that prohibits the recording of audio conversations without the consent of all the parties unless it is reasonably necessary for the purpose of protecting the lawful interest of the party who records the conversation.
Note the exception.
So as a result, we can see that recording someone without their consent is an offence. It is an offence to install, use or cause or to maintain a listening device to overhear, record, monitor or listen to a private conversation to which a person is not a party or to record a private conversation to which a person is a party. There are penalties including some fines and a maximum of five (5) years imprisonment. This is very serious.
Therefore a person who is a party to private conversation may record that conversation only if:
“all of the parties agree, expressly or implied to the listening device being used” or
“all of the parties to the conversation agree to the listening device being so used and the recording of the conversation is either:
- Reasonably necessary for the protection of the lawful interest of that party; or
- Not made for the purpose of communicating or publishing the conversation, or a report of the conversation to persons who are not parties to the conversation.”
So if a person intends to record a conversation to enable them to do so without committing an offence, they must obtain the expressed or implied consent of everybody else. Or, believe that it is reasonably necessary for the protection of their own lawful interest to make the recording without the consent of the other person.
So, are your recordings legally obtained?
If the parties are involved in a proceedings before the Family Court and they want to have the audio or video recordings admitted into evidence the Court must determine whether the recordings have been illegally obtained. The Court will consider if the person who made the recording without the consent of the other person did so to protect their lawful interest and will also need to consider whether it was reasonably necessary for the recording to have been made without the other person’s agreement.
There is of course an exception which applies and the recording can then be admitted into evidence and the Court will then decide what weight to put on the evidence.
The Courts have found that an exception applies and where the recording was reasonably necessary to protect the interest of the person making the recording include:
- “to obtain evidence in relation to family violence which takes place behind closed doors without any witnesses being present other than the alleged perpetrator and victim”;
- “that the mother had a right to protect her interest not be intimidated or harassed and not to be forced to respond to the father’s demands for sexual activity”.
The Court may also be asked to exclude such evidence if its probative value is substantially outlaid by the danger of the evidence being unfairly prejudicial to a party.
So, check the legislation in your own State as they have varying legislation in relation to this sort of surveillance. In Queensland, Victoria and the Northern Territory is not a criminal offence for a party to a private conversation should record that conversation without the consent of the other participant, but it is an offence in those jurisdictions to publish the recording unless permitted in limited circumstances including legal proceedings.
Watch This Space
I say watch this space due to the huge technological advances in our everyday lives and we need to ensure that we stay up to date with the law and in particular in relation to what is happening online. Please be wary of what you post on Facebook in all of the circumstances.